IN THE SUPREME COURT OF OHIO

KENNETH GANLEY, et al.

Plaintiffs-Appellants,

vs.

SUBARU OF AMERICA, INC., et al.

Defendants-Appellees.

CASE NO. 2008-1756

On Appeal from the Medina County Court ofAppeals, Ninth Appellate District

Court of AppealsCase No. 07-CA-0092-M

APPELLEE SUBARU OF AMERICA, INC.'SRESPONSE TO APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION

Kyle T. Shaw (0077382)(Counsel of Record)Porter Wright Morris & Arthur LLP41 South High StreetColumbus, Ohio 43215(614) 227-2094 (Phone)(614)-227-2100 (Facsimile)

William J. GibbonsLatham & Watkins LLP233 S. Wacker Drive, Suite 5800Chicago, Illinois 60606(312) 876-7700 (Phone)(312) 993-9767 (Facsimile)

Counselfor Defendant-AppelleeSubaru ofAmerica, Inc.

Christopher M. DeVito (0047118)Alexander J. Kipp (0081655)Morganstem, MacAdams & DeVito Co., L.P.A.623 West Saint Clair AvenueCleveland, Ohio 44113Counsel for Plaintiffs-Appellants

John E. PattersonAssistant Attorney General30 East Broad Street, 26th FloorColumbus, Ohio 43215Counsel forAppellee Ohio MotorVehicle Dealers Board

Robert PoklarPoklar & Associates10100 Brecksville RoadBrecksville, Ohio 44141Counsel for Appellees Medina Mitsubishi andBrunswick Auto Mart, Inc

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CLERK (7f COlJRl'SUPREME C()UR1- OF (11!0

TABLE OF CONTENTS

NO SUBSTANTIAL CONSTITUTIONAL QUESTION IS INVOLVED AND THISCASE IS NOT OF PUBLIC OR GREAT INTEREST ...... .............................................................1

No Constitutional Question is Implicated ............................................................................1

The Issues in this Case Are Not of Great and General Public Interest ................................2

STATEMENT OF THE CASE AND FACTS ................................................................................3

Proceedings Before the Ohio Motor Vehicle Dealer Board ................................................4

Proceedings Before the Medina County Court of Common Pleas ......................................5

APPELLEES' ARGUMENTS WITH RESPECT TO EACH PROPOSITION OF LAWRAISED IN APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION .................7

Appellants' Proposition of Law No. 1: The Ohio and FederalConstitutions guarantee all litigants the right of due process and the rightto ajury trial. These rights are violated when a trial court sua spontegrants summary judgment to a defendant without ever hearing the meritsof a plaintiff's causes of action . ..:............................................................................7

Appellants' Proposition of Law No. 2: Res judicata and collateralestoppel do not apply as a bar to plaintiff's causes of action when thejudgment relied upon to invoke the doctrines was a proceduraldetermination of jurisdiction and mootness and plaintiff's causes of actionwere never heard on the merits . ...............................................................................8

Appellants' Proposition of Law No. 3: A procedural determination by atribunal that it does not have jurisdiction to hear a case and that the actionis therefore moot is not a determination upon the merits .......................................10

Anellants' Proposition of Law No. 4: An appellate court opinion thatconflicts with other appellate court opinions within the same district, withother appellate districts, and with controlling precedence from the OhioSupreme Court must be resolved to promote confidence in the judiciary .............11

No Conflict Exists Within the Ninth District .....................................................................11

No Conflict Exists Among Ohio's Appellate Districts ......................................................12

CONCLUSION ..............................................................................................................................15

i

NO SUBSTANTIAL CONSTITUTIONAL QUESTION IS INVOLVEDAND THIS CASE IS NOT OF PUBLIC OR GREAT INTEREST

The Medina County Court of Appeals, Ninth District (the "Appellate Court") affirmed a

grant of summary judgment by the Medina County Court of Common Pleas (the "Trial Court")

in favor of Appellee Subara of America, Inc. ("SOA") on the grounds that each and every count

of the Complaint filed in the Trial Court by Appellants Paul Rambasek and Brunswick Nissan,

Inc. dba Brunswick Subaru (together the "Brunswick Appellants") and Kenneth Ganley was

precluded by operation of the doctrines of res judicata and collateral estoppel. The Trial Court

had given preclusive effect to a substantive decision on the merits made in a prior proceeding

involving the same parties before the Ohio Motor Vehicle Dealer Board (the "Board" or the

"OMVDB"). In particular, and as will be discussed in more detail below, the Board made a

substantive detennination that Appellee SOA (an automobile distributor) terminated the

Brunswick Appellants' franchise dealer agreement (the "Dealer Agreement") effective

December 31, 2005 - a determination that Appellants then attempted to improperly re-litigate

before the Trial Court.

No Constitutional Question is Implicated

Appellants' contention that they were denied their constitutional right of due process and

right to a jury trial as a result of the Trial Court's dismissal of their causes of action, without a

determination on the merits, is incorrect. The record is clear, and both the Trial and Appellate

Courts found that there was, in fact, a determination on the merits by the Board as to the

termination of the Bnmswick Dealer Agreement effective December 31, 2005. Appellants adniit

that the Board held that, because the Brunswick Appellants failed to file a Protest before the

Board within the ninety (90) day period proscribed by statute, their Dealer Agreement was

tenninated as of December 31, 2005. (See Appellants' Memorandum in Support of Jurisdiction

1

("Memorandum") at 3.) It is this determination on the merits that was given res judicata (as to

Ganley) and collateral estoppel (as to the Brunswick Appellants) effect by the Trial Court. (See

Decision and Journal Entry dated July 21, 2008 ("Appellate Court Opinion") at ¶¶ 31-35.)

Hence, the argument that a constitutional question is implicated by this matter is

groundless. Appellants improperly sought to re-litigate, by way of their Complaint before the

Trial Court, the Board's determination on the merits as to the termination of the Brunswick

Dealer Agreement. (See id. at ¶¶ 8, 37, 40-42.) The record clearly reflects that Appellants had

the opportunity to fully litigate this issue in the prior Board proceeding. (See id. at ¶¶ 4-6, 32.)

The Issues in this Case Are Not of Great and General Public Interest

Appellants' claim that the case is of great and general public interest is premised on

Appellants' misstatement of the record. Appellants assert that the Trial Court's decision creates

"uncertainty for lawyers and litigants as to if trial courts will address the merits of their

complaints" and that the Appellate Court's affirmance of the Trial Court's decision could allow a

trial judge to dismiss a subsequent cause of action before a hearing on the merits if the preceding

case had been dismissed on procedural grounds for improper venue, lack of jurisdiction or

mootness. (See Memorandum at 1-2.) Appellants' Protests, however, were dismissed by the

OMVDB not on procedural grounds, but based on the Board's determination on the merits that

the Brunswick Dealer Agreement was terminated effective December 31, 2005. (See Appellate

Court Opinion at ¶ 6, 34.) The Trial Court subsequently gave res judicata and collateral estoppel

effect to this substantive holding, not to a mere procedural decision as Appellants contend. (See

id. at ¶¶ 34-35.) The Appellate Court conducted a detailed review of the record to determine

what was at issue before the Trial Court and determined that all of Appellants' claims in that

forum were properly precluded by the Board decision. (See id. at ¶¶ 39-42.) As the Appellate

Court held, "[a]ccordingly, all of these claims depend on whether SOA violated the ODA by

2

improperly terminating the dealership agreement effective December 31, 2005. The Board held

that the dealership was properly terminated, as of that date, without timely protest by

Dealers. . ." (See id. at ¶ 6.)

Accordingly, there is no danger that the holding of this case could lead litigants to expect

that trial courts in Ohio will refuse to address the properly presented merits of their claims or

allow trial courtjudges to give preclusive effect to non-substantive decisions. The record, when

properly characterized, is crystal clear that neither of those things happened here.

STATEMENT OF THE CASE AND FACTS

Appellants' position in the Appellate Court and before this Court are entirely dependent

upon two erroneous claims: (i) that the OMVDB addressed subject matter jurisdiction - and

nothing else - in its ruling on SOA's motion for summary judgment in that forum; and (ii) that

certain determinations made by the Board in its ruling on that summary judgment motion were

improperly given preclusive effect by the Trial Court. Both of these claims misrepresent what

took place before the Board. In fact, the Board made a substantive determination that the

Brunswick Appellants' Dealer Agreement was terminated on December 31, 2005 and that the

fact of that termination rendered the proposed Buy-Sell Agreement between Ganley and the

Brunswick Appellants moot. That substantive determination is what Appellants sought to revisit

in their eleven-count Complaint in the Trial Court.

Because the procedural history in this matter is both complex and central to the issues on

appeal in this matter, the Appellate Court set forth a detailed and accurate recitation of that

history in its opinion in this matter. (See Appellate Court Opinion at ¶¶ 2-22.) The critical

components of that history are as follows:

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Proceedings Before the Ohio Motor Vehicle Dealer Board

Appellee SOA is the authorized distributor of Subaru vehicles in the United States.

Appellant Brunswick Subaru is a former dealer of such Subaru vehicles, previously owned and

operated by Appellant Rambasek. (See id. at ¶ 2.) On August 26, 2005, SOA notified the

Brunswick Appellants of its intent to terminate their Dealer Agreement effective December 31,

2005, pursuant to the Ohio Motor Vehicle Dealer Act (the "OMVDA"), § 4517.54. (See id. at

¶ 4.) Appellant Ganley was party to a proposed Buy-Sell Agreement between himself and the

Brunswick Appellants pursuant to which Ganley sought to purchase the dealership assets of

Brunswick Subaru. (See id. at ¶¶ 4, 32.) Appellants submitted this proposed Buy-Sell

Agreement to SOA on January 6, 2006 - six days after the date that the Brunswick Dealer

Agreement and franchise had been terminated pursuant to SOA's notice and the relevant

OMVDA provisions.

On February 15, 2006, the Brunswick Appellants filed a Protest before the Board,

pursuant to the OMVDA, seeking to enjoin SOA's termination of the Dealer Agreement and

disapproval of the proposed Buy-Sell Agreement. (See id. at ¶ 3.) On February 24, 2006,

Appellant Ganley also filed a Protest before the Board, pursuant to the OMVDA, seeking to

enjoin SOA's disapproval of the proposed Buy-Sell Agreement. (See id.) Discovery followed

and Appellee SOA filed a motion for summary judgment before the Board on July 20, 2006

asserting that it was entitled to judgment as a matter of law because the Brunswick Appellants

failed to file their Protest by the December 31, 2005 deadline to do so, making SOA's

termination of the Dealer Agreement effective as of December 31, 2005. (See id. at ¶ 4.) SOA

also argued that because the Dealer Agreement was terminated prior to the date of the proposed

Buy-Sell Agreement, the Branswick Appellants had no right or ability to sell the dealership

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assets of Brunswick Subaru. (See id.) SOA's summary judgment motion before the Board did

not address "subject matter" jurisdiction. (See id.)

After full briefing and a lengthy evidentiary hearing which all parties attended and

participated in, the Board's Hearing Examiner issued his December 20, 2006 Report and

Recommendation (the "Board Report"). The Board Report contained the Hearing Examiner's

representation that he had considered the "entire record presented by the parties" and found that

SOA had, in fact, effectively terminated the Dealer Agreement as of December 31, 2005. (See

id. at ¶ 6.) The Hearing Examiner also found that, because the Dealer Agreement was terminated

as of December 31, 2005, the Brunswick Appellants had no right or ability to enter into the

subsequently dated Buy-Sell Agreernent to sell their dealership assets, and, as such, the Ganley

Protest was moot. (See id.)

Appellants separately objected to the Board Report, and the Brunswick Appellants

subsequently filed a Notice of Voluntary Dismissal pursuant to Civil Rule 41(A) with the Board,

purporting to dismiss the Brunswick Appellants' Protest without prejudice. (See id. at ¶ 7.)

However, Appellant Ganley expressly declined to join the purported Notice of Voluntary

Dismissal. (See id.) The Board approved the Board Report on January 29, 2007. (See id.) The

Board Report then became a final order, entitled to preclusive effect, as to both Appellant Ganley

by virtue of the doctrine of res judicata, and as to the Brunswick Appellants by virtue of

collateral estoppel. (See id. at ¶¶ 7, 35-39.)

Proceedings Before the Medina County Court of Common Pleas

After the Board Report became final on January 29, 2007, Appellee SOA sought to

appoint a Subaru dealer in Medina County and notified Plaintiffs regarding same. On May 17,

2007, Appellants filed, in the Trial Court, an (1) an eleven-count Complaint ("Complaint") and

(2) a Motion for Temporary Restraining Order seeking to preclude the appointment of a new

5

Subaru dealer in Medina County. (See id. at ¶ 8.) While the Complaint asserted various

statutory and common law claims, each count sought to re-litigate the Board's determination that

the Brunswick Dealer Agreement was terminated as of December 31, 2005 and/or that the Buy-

Sell was moot. (See id. at ¶¶ 8, 37, 40-42.) On May 22, 2007, the parties entered into an Agreed

Temporary Restraining Order to extend through June 21, 2007 whereby Appellee SOA agreed

not to appoint a new Subaru dealer in Medina County pending a hearing on the merits of

Appellants' Motion for Preliminary hijunction by the Trial Court. (See id. at ¶ 9.)

On June 8, 2007, Appellee SOA filed a "Memorandum in Opposition to Motion for

Preliminary Injunction" in response to Appellants' motion for injunctive relief. (See id.) SOA

argued that Appellants could not succeed on the merits because res judicata barred Ganley's

claims and collateral estoppel barred the Brunswick Appellants' claims. (See id.) Appellants'

Complaint was fatally flawed because each of its statutory and common law claims was

predicated on an improper attempt to re-litigate the Board's determination that the Brunswick

Dealer Agreement was terminated as of December 31, 2005. (See id. at 118, 37, 40-42.) On

June 15, 2007, Magistrate Judge James R. Leaver held a hearing, after which he ordered SOA to

"file a dispositive motion and memorandum" to supplement SOA's position with respect to the

issue of the Trial Court's jurisdiction as to the injunctive relief and equitable remedies requested

by Appellants. (See id. at ¶ 11.) On July 6, 2007, SOA filed its "Motion for Summary Judgment

as to Each of Plaintiffs' Claims for hijunctive Relief (Supplementing Defendant's Response to

Plaintiffs' Motion for Preliminary Injunction)" along with a memorandum in support of the

motion. (See id. at ¶ 12.) Appellants then filed a Response brief on July 25, 2007, (see id. at ¶

15), and SOA filed a "Reply Memorandum in Support of Motion for Summary Judgment" on

July 31, 2007. (See id. at ¶ 16.) On August 2, 2007, Magistrate Judge Leaver issued his opinion

6

(the "Magistrate's Report") granting Appellee SOA summary judgment as to each count in

Appellants' Complaint. (See id. at ¶ 17.) The Magistrate's Report was adopted by the Trial

Court, following written objections by Appellants and oral argument. (See id. at ¶¶ 19-22.) The

Appellants' appeal to the Appellate Court followed. The Appellate Court affirmed the Trial

Court's decision adopting the Magistrate's Report and denied subsequent Motions for

Reconsideration, Rehearing En Banc and for Certification of a Conflict brought by Appellants.

Appellants now request that this Honorable Court accept jurisdiction to review this matter.

APPELLEES' ARGUMENTS WITH RESPECT TO EACH PROPOSITION OF LAWRAISED IN APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION

Appellants' Proposition of Law No. 1: The Ohio and Federal Constitutions guarantee alllitigants the right of due process and the right to a jury trial. These rights are violatedwhen a trial court sua sponte grants summary judgment to a defendant without everhearing the merits of a plaintiff's causes of action.

Appellants' argument that the Appellate Court's affirmance of the Trial Court's grant of

summary judgment in favor of Appellees violated Appellants' constitutional rights is incorrect.

Due process requires that each party be allowed to be fully heard on the merits. As discussed in

detail above, Appellants were afforded a full and fair opportunity (via discovery, full briefing

and a full evidentiary hearing) to be heard by the Board on the merits as to the issue of the

effective termination of the Dealer Agreement as of December 31, 2005. (See id. at ¶¶ 4-6, 32.)

The Board's determination on this threshold issue ended the necessary factual and legal inquiry

in that forum. (See id. at ¶ 34.) Appellants also had full and fair opportunities (via full briefmg

and oral argument before the Trial Court) to demonstrate to the Trial Court that there were any

genuine issue of material fact on the basis of which Appellants' Complaint should survive

Appellee SOA's Motion for Summary Judgment. (See id. at ¶¶ 8-21.) Appellants failed to do so

- instead, the Trial Court determined that the preclusive effect of the Board's prior decision

barred each of Appellants' claims. (See id. at ¶ 17.) The Appellate Court's affirmance of the

7

Trial Court's decision is not unconstitutional as due process requirements were clearly met in

both of the proceedings below.

Appellants also argue that the Trial Court dismissed Appellants' claims for monetary

relief on a sua sponte basis, thereby impinging on Appellants' constitutional rights. The

Appellate Court considered this argument and concluded that all of the Appellants' claims were

properly before the Trial Court on SOA's Motion for Summary Judgment pursuant to the Trial

Court's scheduling order, and thus no sua sponte dismissal occurred. (See id. at ¶¶ 24-25.) The

Appellate Court's conclusion is buttressed by the fact that SOA's Memorandum in Support of its

Motion for Summary Judgment in the Trial Court specifically incorporated by reference the

arguments contained in SOA's earlier brief in opposition to Appellants' Motion for Preliminary

hijunction (entitled, "Memorandum in Support of Motion for Summary Judgment as to Each of

Plaintiffs' Claims for hijunctive Relief (Supplementing Defendant's Response to Plaintiffs'

Motion for Preliminary Injunction)). In that brief, SOA expressly raised the issue of the

preclusive effect of the OMVDB determination that the Dealer Agreement was terminated on

December 31, 2005. (See id. at ¶ 14, 25.) Each of the eleven counts of the Complaint attempts

to challenge that determination. (See id. at ¶¶ 40-42.) Hence, the Trial Court, in deciding the

summary judgment motion at issue on appeal, properly had before it both the OMVDB

determination and a record supporting its dismissal of Appellants' claims on the grounds of res

judicata and collateral estoppel.

Appellants' Proposition of Law No. 2: Res judicata and collateral estoppel do not apply asa bar to plaintiff s causes of action when the judgment relied upon to invoke the doctrineswas a procedural determination of jurisdiction and mootness and plaintiff's causes ofaction were never heard on the merits.

The record is clear that the hearing before the OMVDB was not ajurisdictional hearing,

but was a hearing on the merits (entitled to preclusive effect) as to whether or not SOA properly

8

terminated the Brunswick Dealer Agreement as of December 31, 2005. (See id. at ¶ 34-35.)

Appellant's argument can best be addressed by quoting from the Appellate Court Opinion:

We disagree with Dealers' argument that the hearing before theOMVDB was not a hearing on the merits, but simply ajurisdictional hearing ... That the OMVDB held that it did nothave jurisdiction to decide any other issues did not render itsdecision to be only one ofjurisdiction ... The OMVDB simplydetermined that Dealers could not prevail under the ODA becauseSOA properly terminated the dealership agreement as of December31, 2005 without protest by Dealers, thereby leaving the OMVDBwith nothing before it to consider. Because it was a final judgmenton the merits, the Board Report had preclusive effect on Ganley'saction in the trial court via the doctrine of res judicata.

(Id. at ¶ 34.) As demonstrated previously, the Board did not make a "procedural" determination

ofjurisdiction and mootness, but rather made a substantive determination on the merits that the

Brunswick Dealer Agreement was terminated effective December 31, 2005 - the Trial Court

gave res judicata and collateral estoppel effect to that substantive determination. (See id. at ¶¶

34-35.) In light of the December 31, 2005 tennination of the Brunswick Dealer Agreement, the

Board also made the substantive determination that Ganley's Protest with respect to the Buy-Sell

Agreement was moot since there was nothing left for the Brunswick Appellants to sell and

nothing left for Ganley to buy. (See id.)

Appellants' contention that the Trial Court Judge "rubber-stamped" the Magistrate's

Report on SOA's summary judgment motion is also completely unfounded. The record clearly

reflects that the Trial Court Judge considered extensive written submissions and heard

approximately two hours of oral argument from both parties prior to adopting the Magistrate's

Report. As the Appellate Court noted, Appellants filed substantial written objections to the

Magistrate's Report. (See id. at ¶ 19.) SOA then filed a Response to the Appellants' objections.

On August 30, 2007, Trial Court Judge Collier held a hearing at which Appellants were afforded

9

the opportunity to argue their case regarding their objections to the Magistrate's Report. (See id.

at ¶¶ 20-21.) Judge Collier thus considered the record, briefing and arguments presented to him

prior to making his ruling adopting the Magistrate's Report. As such, that ruling should not be

discounted as a mere "rubber stamp" decision. (See id.)

Appellants' Proposition of Law No. 3: A procedural determination by a tribunal that itdoes not have jurisdiction to hear a case and that the action is therefore moot is not adetermination upon the merits.

Appellants' Proposition of Law No. 3 characterizes the Board's detennination as a

procedural determination of "subject matter" jurisdiction. (See Memorandum at 10-11.) This

characterization has been previously demonstrated to be wrong.l (See Appellate Court Opinion

at ¶ 34-35; see also supra at 8-9 (discussing Appellants' Proposition of Law No. 2).) As detailed

above, the Board was required initially to determine whether SOA had terminated the Brunswick

Dealer Agreement effective December 31, 2005. (See id. at ¶ 34.) Only if the Board had

detemiined that they did not do so would the matter proceed to the next step of the analysis: the

"good cause" determinations. (See id.) When the Board decided that SOA had effectively

terminated the Dealer Agreement effective December 31, 2005, its analysis properly ended, as

any "good cause" determination was no longer relevant given the effective date of the Dealer

Agreement termination. (See id.) That the Board held that it did not have jurisdiction to decide

any remaining issues in this case (based on its initial substantive determination on the merits) did

not render its decision to be "only" one of jurisdiction. The "determination on the merits" relied

upon and given preclusive effect by the Trial Court was the determination that the Brunswick

Notably, neither Appellee SOA nor the OMVDB nor the Trial Court nor the AppellateCourt has ever referred to the issue before the OMVDB as one of "subject matter"jurisdiction and, indeed, it was not. Only Appellants have so characterized it.

10

Dealer Agreement was properly terminated as of December 31, 2005, not that the Board "lacked

jurisdiction." (See id. at ¶ 32.)

Appellants' Proposition of Law No. 4: An appellate court opinion that conflicts with otherappetlate court opinions within the same district, with other appellate districts, and withcontrolling precedence from the Ohio Supreme Court must be resolved to promoteconfidence in the judiciary.

Appellants' arguments rely upon their fundamental misstatements as to the

detenninations made by the Board in the OMVDB proceeding in an attempt to create conflicts

with existing caselaw. An accurate assessment of the record, and the OMVDB and Trial Court

determinations (as previously outlined herein) reveals that the "conflicts" identified in

Appellants' Memorandum do not actually exist.

No Conflict Exists Within the Ninth District

Appellants first argue that the Appellate Court failed to follow Ninth District precedent

holding that a voluntary dismissal pursuant to Civil Rule 41(A) operates to effectively "void" the

existence of the dismissed matter, and thus any determination as to that matter (made prior to the

dismissal) is not entitled to preclusive effect. (See Memorandum at 12-13.) Specifically,

Appellants assert that the Trial Court failed to give effect to (and the Appellate Court failed to

recognize) the Rule 41(A) voluntary dismissal of the Brunswick Appellants' OMVDB Protest,

creating a conflict with Ninth District precedent. (See id.) The Appellate Court Opinion,

however, clearly reflects that the Appellate Court did acknowledge the Brunswick Appellants'

voluntary dismissal pursuant to Rule 41(A). (See Appellate Court Opinion at ¶ 7.) But, it is

undisputed that Appellant Ganley did not effect a Rule 41(A) dismissal, and as such, the

OMVDB's determination with respect to the Ganley Protest became a final judgment entitled to

preclusive effect in the form of res judicata as to Ganley and collateral estoppel as to the

Brunswick Appellants. (See Appellate Court Opinion at ¶¶ 34-38.)

11

Appellants also argue that the Appellate Court failed to follow Ninth District precedent

standing for the proposition that no preclusive effect may be given to a matter where there has

been no determination on the merits -- only a` jurisdictional" determination. (See Memorandum

at 12.) As discussed previously, Appellants' contention that the OMVDB hearing and decision

was so limited in scope is wrong. (See Appellate Court Opinion at ¶¶ 32-35; see also supra at 8-

10 (discussing Appellants' Proposition of Law Nos. 2 and 3).) The Appellate Court did not

attribute preclusive effect to a solely "jurisdictional" decision. As previously explained, the

OMVDB hearing was not simply a jurisdictional hearing, but was a full evidentiary hearing,

resulting in a determination on the merits entitled to preclusive effect as to its finding that SOA

properly terminated the Brunswick Dealer Agreement as of December 31, 2005. (See id.)

Appellants further argue that the Appellate Court erred in affirming a grant of summary

judgment as to causes of action and remedies not specifically moved on by Appellee, purportedly

contrary to existing Ninth District precedent. (See Memorandum at 12.) However, as previously

discussed, the record is clear that each of the eleven counts of Appellants' Complaint attempted

to re-litigate the Board's determination that the Brunswick Dealer Agreement was terminated

effective December 31, 2005 and/or that the Buy-Sell was moot, (see Appellate Court Opinion at

118, 37, 40-42), and that on summary judgment, the Trial Court properly had before it the

complete record by which it could dismiss Appellants' claims on the grounds of res judicata and

collateral estoppel. (See id. at ¶¶ 24-25; see also supra at 7-8 (discussing Appellants'

Proposition of Law No. 1).) Accordingly, the actual determinations at issue are not in conflict

with existing precedent within the Ninth District.

No Conflict Exists Among Ohio's Appellate Districts

Appellants argue that the Appellate Court's Opinion created a conflict with precedent in

the Third and Tenth Appellate Districts standing for the proposition that an evidentiary hearing

12

on "subject matter" jurisdiction is not a trial on the merits entitled to preclusive effect (see

Memorandum at 13), and with precedent in the Tenth and Eleventh Appellate Districts standing

for the proposition that if a court acts without jurisdiction, then any judgment rendered by that

court is void and not entitled to preclusive effect. (See id. at 13-14.) Appellants argue that the

OMVDB hearing and decision was limited in scope to a finding of (lack of) "subject matter"

jurisdiction, and that such holding did not constitute a determination on the merits entitled to

preclusive effect. (See id. at 8-11.) Appellants' argument has no merit. In fact, and as

previously discussed, the Appellate Court found that the hearing before the OMVDB was not a

hearing on "subject matter" jurisdiction at all, but was a hearing on the merits resulting in a

determination entitled to preclusive effect that SOA had terminated the Brunswick Dealer

Agreement effective December 31, 2005. (See Appellate Court Opinion at ¶¶ 34-35; see also

supra at 8-10 (discussing Appellants' Proposition of Law Nos. 2 and 3).)

Finally, Appellants argue that the Appellate Court's Opinion created a conflict with

precedent in the Third, Sixth, Eighth, Tenth and Eleventh Appellate District Courts of Appeals

standing for the proposition that the Trial Court should not have granted sununary judgment on

any matters outside the scope of the summary judgment briefing on the "injunctive relief and

equitable remedies requested" by Appellants. (See Memorandum at 14.) Once again, Appellants

are incorrect. As previously discussed, the Appellate Court reviewed the record and concluded

that all of the Appellants' claims were properly before the Trial Court on SOA's Motion for

Sununary Judgment pursuant to the Trial Court's scheduling order. (See Appellate Court

Opinion at ¶¶ 24-25; see also supra at 7-8 (discussing Appellants' Proposition of Law No. 1.)

Further, as noted previously, SOA's briefing on the Motion for Summary Judgment in the Trial

Court incorporated by reference the arguments contained in SOA's brief in opposition to

13

Appellants' Motion for Preliminary lnjunction, which directly raised the issue of the preclusive

effect of the OMVDB determination that the Dealer Agreement was terminated on December 31,

2005. (See supra at 8 (discussing Appellants' Proposition of Law No. 1)) Hence, this matter

was properly within the scope of the summary judgment motion before the Trial Court.

Notably, Appellants raised all of these same "conflicts" in their Motion for Rehearing En

Banc and Motion to Certify a Conflict before the Appellate Court. The Appellate Court denied

both of these motions (along with Appellants' Application for Reconsideration) and issued a

detailed opinion specifically distinguishing the purportedly conflicting precedent from its

holdings in this matter. (See September 2, 2008 Journal Entry by the Court of Appeals, Ninth

Judicial District at 1-2, 4-6.) Accordingly, while Appellants attempt to create a conflict through

their mischaracterizations of the underlying record, the actual determinations and holdings at

issue are not in conflict with existing precedent and do not justify Appellants' request that this

Court accept jurisdiction in this matter.

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CONCLUSION

For all the reasons set forth herein, Appellee SOA respectfully requests that this Court

decline jurisdiction in this matter.

Ky1e o Shaw`(0077382)(Counsel of Record)Porter Wright Morris & Arthur LLP41 South High StreetColumbus, Ohio, 43215(614) 227-2094 (Phone)(6140-227-2100 (Facsimile)

William J. GibbonsLatham & Watkins LLP233 S. Wacker Drive, Suite 5800Chicago, IL 60606(312) 876-7700 (Phone)(312) 993-9767 (Facsimile)

Attorneys for Defendant-AppelleeSubaru ofAmerica, Inc.

15

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy of the foregoing was served by regular

U.S. Mail, postage prepaid, this 15` day of October, 2008, upon the following counsel or parties

of record:

Christopher M. Devito, Esq. (also received via electronic mail)Morganstern, MacAdam & Devito Co. LPA623 West Saint Clair AvenueCleveland, Ohio 44113

Counsel for Appellants

Robert A. Poklar, Esq.Robert A. Poklar & Associates, LLP10100 Brecksville RoadBrecksville, Ohio 44141

Counsel for Appellees Medina Mitsubishiand Brunswick Auto Mart

John Patterson, Esq.Assistant Attorney GeneralState of Ohio Office of the Attorney General30 East Broad Street, 26th FloorColumbus, Ohio 43215

Counselfor Appellee OMVDB

im =Kyle(l. Shaw